<\/p>\n
University of Texas Southwestern Medical Center v. Nassar<\/span><\/span> Makes it More Difficult for Employees to Bring Retaliation Lawsuits Against Employers<\/em><\/span><\/p>\n On June 24, 2013, the Supreme Court of The United States held by a 5-4 margin in University of Texas Southwestern Medical Center v. Nassar<\/span> that in order for an employers\u2019 actions to be considered retaliatory against an employee for filing discrimination complaints under Title VII, the employee must show that the alleged retaliatory actions would not have occurred \u201cbut for\u201d their complaint. In so holding, the Supreme Court has made it more difficult for Americans to bring retaliation lawsuits against their current or former employers.<\/span><\/p>\n University of Texas Southwestern Medical Center v. Nassar<\/span><\/span> arose from a complaint filed by Dr. Naiel Nassar. Dr. Nassar, a physician of Middle Eastern descent had been employed as a University of Texas Southwestern faculty member as well as a staff physician at an affiliated hospital. After one of his supervisors, Dr. Levine, made a series of disparaging comments linking Dr. Nassar\u2019s work ethic with his ethnic heritage (such as \u201cMiddle Easterners are lazy\u201d), Dr. Nassar complained to Dr. Levine\u2019s superior, Dr. Fritz that he was being ill treated on account of his religion and ethnicity. As a result, Dr. Nassar resigned from his teaching post on the University\u2019s faculty but decided to stay on as a staff physician. However, before doing so, Dr. Nassar sent a letter to the University faculty regarding the specific cause of his resignation. On learning of the hospitals\u2019 job offer to Dr. Nassar, Dr. Fritz protested his hiring, asserting that the offer was inconsistent with the affiliation agree\u00adment\u2019s requirement that all staff physicians also be members of the University faculty. As a result, the Hospital then withdrew its offer. <\/span><\/span><\/p>\n After exhausting his administrative remedies, Dr. Nassar filed this Title VII suit in the United States District Court for the Northern District of Texas. He alleged that Dr. Fritz\u2019s efforts to prevent the hospital from hiring him were in retaliation for complaining about Dr. Levine\u2019s harassment, in violation of \u00a72000e\u20133(a), which prohibits employer retaliation \u201cbecause [an employee] has opposed . . . an un\u00adlawful employment practice . . . or . . . made a [Title VII] charge.\u201d The jury found for respondent on the claim and awarded him over $400,000 in back pay and more than $3 million in compensatory damages. The District Court later reduced the compensatory damages award to $300,000. On appeal, the Fifth Circuit af\u00adfirmed as to the retaliation finding, on the theory that retaliation claims brought under \u00a72000e\u20133(a)\u2014like claims of status-based discrimination under \u00a72000e\u20132(a)\u2014require only a showing that retaliation was a motivating factor for the adverse employment action, rather than its but-for cause. See id.<\/span><\/span>, <\/em>at 454, n. 16 (citing Smith <\/span>v. Xerox Corp.<\/span><\/span>, 602 F. 3d 320, 330 (CA5 2010)). It further held that the evidence supported a finding that Dr. Fitz was moti\u00advated, at least in part, to retaliate against respondent for his complaints against Dr. Levine. <\/span>The hospital appealed the Fifth Circuit decision, saying the judge told the jury it only had to find that retaliation was a motivating factor in the supervisor\u2019s actions when he instead should have told the jury it had to find that discriminatory action wouldn\u2019t have happened \u201cbut-for\u201d the supervisor\u2019s desire to retaliate for liability to attach.<\/span><\/p>\n The Supreme Court agreed to reverse the Fifth Circuit decision that retaliation occurred. In so holding, the Court set a higher bar by requiring that the Plaintiffs must show that \u201cbut for\u201d having enforced their rights, retaliation would not have happened. The Court explained that in defining the proper causation standard for Title VII retaliation claims, it is presumed that Congress incorporated tort law\u2019s causation in fact standard (i.e., proof that the Defendant\u2019s conduct did in fact cause the Plaintiff\u2019s injury) absent an indication to the contrary in the statute itself. In other words, an em\u00adployee alleging status-based discrimination under \u00a72000e\u20132 need not show \u201cbut-for\u201d causation but rather it suffices instead to show that the motive to discriminate was one of the employer\u2019s motives, even if the em\u00adployer also had other, lawful motives for the decision. This is called mixed motive rationale and is the result of Price Waterhouse <\/span>v. Hopkins<\/span><\/span>, 490 U. S. 228, and the ensuing Civil Rights Act of 1991 (1991 Act), which substituted a new burden-shifting framework for the one endorsed by Price Waterhouse<\/span><\/span>. <\/span><\/p>\n As relevant here, that Act added a new subsection to \u00a72000e\u20132, providing that \u201can unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice,\u201d \u00a72000e\u20132(m). Also relevant here is the Supreme Court\u2019s decision in Gross <\/span>v. FBL Financial Services, Inc.<\/span><\/span>, 557 U. S. 167, 176, which interprets the Age Dis\u00adcrimination in Employment Act of 1967 (ADEA) phrase \u201cbecause of . . . age,\u201d 29 U. S. C. \u00a7623(a)(1). According to the Court, Gross<\/span><\/span> <\/em>holds two insights that informed the analysis of this case. The first is textual and concerns the proper interpretation of the term \u201cbecause\u201d as it relates to the principles of causation underlying both \u00a7623(a) and \u00a72000e\u20133(a). The second is the significance of Congress\u2019 structural choices in both Title VII itself and the 1991 Act. Pp. 5\u201311.<\/span><\/p>\n Title VII\u2019s anti retaliation provision appears in a different sec\u00adtion from its status-based discrimination ban and, like the ADEA provision in Gross<\/span><\/span>, \u00a72000e\u20133(a) makes it unlawful for an employer to take adverse employment action against an employee \u201cbecause\u201d of certain criteria. <\/span><\/p>\n The Supreme Court held that because there is no meaningful textu\u00adal difference between \u00a72000e\u20133(a) and the ADEA provision, the Title VII retaliation claim requires proof that the desire to retaliate was the but-for cause of the challenged employment ac\u00adtion. The Court further reasoned that the proper interpretation and implementation of \u00a72000e\u20133(a) and its causation standard are of central importance to the fair and responsible allocation of resources in the judicial and litigation sys\u00adtems, particularly since retaliation claims are being made with ever increasing frequency. Lessening the causation standard could also contribute to the filing of frivolous claims, siphoning resources from efforts by employers, agencies, and courts to combat workplace har\u00adassment. <\/span><\/p>\n Nassar and the Government attempted to argue that their view would be consistent with longstanding agency views contained in an Equal Employment Opportunity Commission guidance manual. However the Court rejected that argument since the manual\u2019s explanations for its views lack the necessary persuasive force. The Court also rejected Nassar\u2019s argument\u2014that if \u00a72000e\u2013 2(m) does not control, then the Price Waterhouse<\/span><\/span> <\/em>standard should. The Court explained this line of reasoning is foreclosed by the 1991 Act\u2019s amendments to Title VII, which dis\u00adplaced the Price Waterhouse<\/span> framework.<\/span><\/p>\n In University of Texas Southwestern Medical Center v. Nassar<\/span>, a dissenting opinion by Justice Ginsberg (with whom Justice Breyer, Justice Sotomayor and Justice Kagan joined) demonstrates that not all agree that a \u201cbut for\u201d cause must be shown to prove retaliation took place. Justice Ginsberg accused the majority of having “corralled” Title VII of the Civil Rights Act of 1964, and called on Congress to undo the damage when she stated:<\/span><\/p>\n In this endeavor, the Court is guided neither by precedent, nor by the aims of legislators who formulated and amended Title VII. In-deed, the Court appears driven by a zeal to reduce the number of retaliation claims filed against employers. See ante<\/em>, at 18\u201319. Congress had no such goal in mind when it added \u00a72000e\u20132(m) to Title VII. See House Report Part II, at 2. Today\u2019s misguided judgment, along with the judgment in Vance <\/span>v. Ball State Univ.<\/span><\/span>, post<\/span><\/span>, <\/em>p. 1, should prompt yet another Civil Rights Restoration Act.<\/span><\/p>\n Justice Ginsberg also cited EEOC scripture that broadened the interpretation of the “causation” standard Justice Kennedy narrowed when she stated: <\/span><\/p>\n It is strange logic indeed to conclude, that when Congress homed in on retaliation and codified the proscription, as it did in Title VII, Congress meant protection against that unlawful employment practice to have less force than the protection available when the statute does not mention retaliation.<\/span><\/p>\n Plaintiffs are now very much limited in the ways in which they can prove that they have been damaged by discrimination. The Supreme Court\u2019s decision adopting the narrow standard will make it more difficult for employees to bring retaliation claims against current and former employers and accordingly decrease an employer\u2019s exposure to liability for retaliation in the future. Going forward, an employee will not be considered to have been retaliated against unless he or she can show that the alleged retaliatory actions would not have occurred \u201cbut for\u201d their complaint. <\/span><\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/span>The New York City Employment Lawyers of Fitapelli & Schaffer frequently represent clients who have been the victim of discrimination, harassment and retaliation.\u00a0 <\/span>Luckily, if a person worked in New York City, they are covered by the NYC Human Rights Law, which is much more expansive and provides greater remedies than Federal Law. Please call for a free consultation, (212) 300-0375.<\/span><\/p>\n \u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
\nUniversity of Texas Southwestern Medical Center v. Nassar Makes it More Difficult for Employees to Bring Retaliation Lawsuits Against Employers
\nOn June 24, 2013, the Supreme Court of The United States held by a 5-4 margin in University of Texas Southwestern Medical Center v. Nassar that in order for an employers\u2019 actions to be considered retaliatory against an employee for filing discrimination complaints under Title VII, the employee must show that the alleged retaliatory actions would not have occurred …<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":"","_links_to":"","_links_to_target":""},"categories":[38,1,39,40,37],"tags":[],"class_list":["post-459","post","type-post","status-publish","format-standard","hentry","category-discrimination","category-employment-law","category-harassment","category-retaliation","category-supreme-court"],"yoast_head":"\n